Obadia Shiboche Isalia & 1 other v James Atema
The bottom line
#Kenya's Court of Appeal gave the applicants 30 days to file their appeal record, ruling that delay caused by the court registry should not doom an appeal.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file record of appeal under Rule 4
Extension granted: the applicants timeously applied for typed proceedings, obtained a certificate of delay on 24th February 2020, and filed the application within less than a month of capacitation; the intended appeal is arguable and no prejudice to the respondent was shown.
The court applied the settled Rule 4 factors: length of delay, reason for delay, arguability, and prejudice. Although the notice of appeal was lodged three days late and the record was filed well outside the sixty days in Rule 82(1), the delay was attributable to the registry's failure to supply typed proceedings, evidenced by correspondence and a certificate of delay. The applicants filed within a month of being capacitated. A challenge to a judgment finding title was procured by fraud is arguable, and the respondent pointed to no prejudice.
Effect of conflicting certificates of delay
Where the parties produce rival certificates of delay and neither seeks verification by the Deputy Registrar, the court cannot bar the applicant from relying on their own certificate.
The respondent alleged the applicants' certificate of delay dated 24th February 2020 was fake and produced a rival one. The court held that verifying which certificate was authentic was beyond the scope of the ruling and neither party had initiated verification with the Deputy Registrar; accordingly the applicants could rely on their certificate as the basis for the application.
Proviso to Rule 82(1) and the certificate of delay
An applicant who timeously applied for proceedings is entitled to the benefit of the proviso to Rule 82(1), with the sixty-day period running from the date of the certificate of delay.
The applicants lodged a notice of appeal and a letter bespeaking proceedings timeously, with no assertion that the respondent was not served with the bespeaking letter. The proviso to Rule 82(1) therefore applied, subject to obtaining a certificate of delay showing the period taken to prepare the record fell outside the sixty days.
Legal principles established
#- The Court's power under Rule 4 is discretionary and unfettered, guided by the length of and reason for delay, arguability of the appeal, prejudice to the respondent, and related factors
- A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4
- Failure to attach a draft memorandum of appeal is not fatal to a Rule 4 application so long as arguability is demonstrated through other processes relied upon
- A delay of less than one month since capacitation (receipt of certified proceedings and certificate of delay) is not inordinate
Court orders
#- 1.Applicants have thirty (30) days from the date of the ruling to file and serve a record of appeal
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya
- Kakamega ELC No. 60 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules under the Appellate Jurisdiction Act, Cap 9 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obadia Shiboche Isalia & 1 other v James Atema", Case Analysis (2021). Misc. Civil Application No. 69 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/911/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.